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Crutchfield v. Corps of Eng'rs

Citation: 33 ELR 20112
No. No. CIV.A. 3:02CV594, 230 F. Supp. 2d 687/(E.D. Va., 10/31/2002)

The court holds that two individuals lacked standing to challenge the U.S. Army Corps of Engineers' (the Corps') issuance of a permit to a developer for the construction of a sewer line from a housing development to a county pumping station. The individuals previously challenged the Corps' issuance to the county of an individual construction permit for a sewage interceptor and nationwide permits for construction of a wastewater treatment system. The court set aside the permits as arbitrary and capricious. The county revised its permit application, omitting the sewage interceptor. The Corps issued nationwide permits for the construction, and the individuals again challenged their issuance. Soon after, the developer, allegedly acting under an agreement with the county, applied to the Corps for a permit to build a sewer line from its housing development to the current wastewater treatment system, with one-quarter of the sewer to lie along the easement originally intended for the sewage interceptor. If the Corps issued the county permits for a new wastewater treatment system, the final effluent from the development would discharge to a different stream. The Corps issued the developer's permit, and the individuals challenged its issuance. Thereafter, the court determined that the nationwide permits issued for the county's second application were arbitrary and capricious and remanded the case to the Corps. The developer then moved to dismiss the individuals' challenge for lack of standing. The court first holds that the individuals failed to allege an imminent injury necessary for standing. They alleged that the developer's permit will allow discharge of effluent from the housing project to a stream bordering their farm, but this injury cannot occur unless the Corps, on remand, issues a permit for the county's new wastewater system. Under the current system, the development's effluent would not discharge to the stream impacting the individuals' farm. Although the Corps may issue the relevant permits for the wastewater system, the court cannot presume that such permits will be issued. Thus, the complained of injury is not imminent. Likewise, the individuals' complained of cause of the injury is not the developer's permit, but the permit that the Corps may issue to the county for the wastewater system. Therefore, the individuals failed to satisfy the causation requirement of standing. Moreover, the individuals' requested relief of setting aside the developer's permit would not impact the potential issuance of the county permit for the wastewater treatment system. Thus, setting aside the developer's permit would not redress the alleged harm to the stream bordering the individuals' farm. The court also holds that the individuals cannot amend their original complaint to attempt to add an injury sufficient for standing.

Counsel for Plaintiffs
William B. Ellis
Ellis & Thorp
1406 Confederate Ave., Richmond VA 23227
(804) 783-6805

Counsel for Defendants
James C. Roberts
Troutman Sanders
316 W. Broad St., Richmond VA 23220
(804) 644-0711